DATE: July 24, 2006

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SSN: -----------

Applicant for Security Clearance

ECISION OF ADMINISTRATIVE JUDGE

ELIZABETH M. MATCHINSKI

APPEARANCES

FOR GOVERNMENT

Eric H. Borgstrom, Esq., Department Counsel

FOR APPLICANT

Pro Se

SYNOPSIS

Applicant was arrested for felony possession of cocaine in 1991, underage drinking in 1993, driving while impaired in July 1994, carrying a concealed weapon in August 1994, and first degree murder in 1996. While the murder and concealed weapon charges were dismissed, and he completed the terms of his other sentences, he deliberately omitted his arrests from his applications for employment with the defense contractor and for security clearance. Applicant also did not disclose on his security clearance application five delinquent debts that are still outstanding. Personal conduct and financial considerations concerns are not mitigated. Clearance is denied.

STATEMENT OF THE CASE

On September 20, 2005, the Defense Office of Hearings and Appeals (DOHA) issued a Statement of Reasons (SOR) to Applicant which detailed reasons why DOHA could not make the preliminary affirmative finding under the Directive that it is clearly consistent with the national interest to grant or continue a security clearance for Applicant. ⁽¹⁾ DOHA recommended referral to an administrative judge to conduct proceedings and determine whether clearance should be granted, continued, denied, or revoked. The SOR was based on criminal conduct (Guideline J), financial considerations (Guideline F), and personal conduct (Guideline E).

On October 18, 2005, Applicant answered the SOR and requested a hearing before a DOHA administrative judge. The case was assigned to me January 3, 2006, and I convened a hearing on February 28, 2006. Eight government exhibits were admitted and testimony was taken from Applicant and his fiancée, as reflected in a transcript received March 13, 2006.

Under Guideline J, Applicant was alleged to have pleaded no contest in February 1993 to felony possession of cocaine in 1991, and been sentenced to two years in jail (suspended), and 12 months probation with conditions. Under Guideline F, he was alleged to owe delinquent debt totaling $5,717. Under Guideline E, he was alleged to have deliberately falsified his September 2002 security clearance application (SF 86) by failing to disclose his criminal arrest record (the 1991 felony cocaine possession and arrests for first degree murder in March 1996, driving while impaired and civil revocation of driver's license in July 1994, underage possession and consuming on unauthorized premises a malt beverage in September 1993, and carrying a concealed weapon and second degree trespass in August 1994) as well as adverse financial information (delinquent debts and a vehicle repossession). He was also alleged to have falsified his August 2002 application for employment with the defense contractor by failing to disclose his convictions for cocaine possession, driving while impaired, and underage possession of a malt beverage.

Applicant admitted his arrest record and indebtedness as alleged, but denied any intentional falsification of his SF 86 or his employment application. Applicant's admissions are incorporated as findings of fact. After a thorough consideration of the evidence, I make the following additional findings:

Applicant is a 31-year-old outside electrician who has been employed by a defense contractor since fall 2002. Currently in an apprenticeship program, he seeks a secret-level security clearance for his duties.

Applicant, who never knew his father, was shuffled back and forth between his mother's home in city X and his aunt's in state Y during his youth. While attending high school in state Y in December 1991, Applicant was given a small amount of crack cocaine at the start of the school day by a friend who told him he could sell it for $20.00. Applicant was later called to the principal's office where he and his friend were arrested by a deputy sheriff. Applicant was indicted for felony possession of cocaine. He pleaded no contest at a bench trial in February 1993, was found guilty and sentenced to two years in jail (suspended), 12 months supervised probation with conditions, including 72 hours of community service, fines and fees totaling $205, avoid any violation of the drug laws, and remain in school or complete his GED.

Applicant drank on occasion while in high school, two or three beers once every two weeks after a basketball game or a school dance. Six months to a year after he was arrested on the drug charge, Applicant dropped out of high school. He continued to drink alcohol, about a six-pack per week. At age 18 in September 1993, he was arrested for possession/consuming beer on unauthorized premises, and possession of a malt beverage under age 21. He paid about $110 in fines. In late July 1994, after consuming a six-pack of beer, he was stopped in a drunk driving check. He failed field sobriety tests and was arrested for driving while impaired. In mid-January 1995, he pleaded guilty and was sentenced to 60 days in jail (all but 12 hours suspended), two years unsupervised probation, one year suspension of driver's license, and fined.

In August 1994, Applicant was hanging out with a cousin (Mr. Z) and two others in a parking lot when Mr. Z fired a revolver into the air. No one would admit ownership of the weapon to the officers who responded, so all were arrested for carrying a concealed weapon and for second degree trespassing, both misdemeanors. After spending the night in jail, Applicant and his companions were released. In September 1994, the charges were dismissed without leave.

In early March 1996, Applicant was standing outside of a convenience store with Mr. Z and another of his cousins when Mr. Z shot another man twice in the back. Applicant fled with his companions. The following morning, Applicant told his aunt that Mr. Z had killed the man. Two weeks after the crime, Applicant turned himself in to the sheriff and was arrested for first degree murder, a felony. After spending one month in jail, he gave a statement as to what he had seen. r. Z accepted a plea bargain of 12 to 15 years in prison, and in December 1996, the charge against Applicant was dismissed without leave at the request of the district attorney.

After he was let out of jail, Applicant returned to live with his mother in city X where he worked temporary jobs. In 1997, he met his fiancée, who was attending a university in the area. In August 1999, his fiancée had to leave school and return home when her mother fell ill. Applicant relocated with her, and he put the telephone in his name at their new address. ⁽²⁾

In early 2000, Applicant began working as a window installer at about $8.80 an hour. His fiancée also worked, earning about $13 an hour. She handled their finances. Between December 2000 and June 2001, Applicant opened consumer credit accounts that subsequently became delinquent due to his and his fiancée's loss of income. Out of work for a couple of months after being laid off in 2001, she returned to work at a lower wage job where she earned only $10 an hour. She was unemployed for four months after the birth of their son in February 2002. Applicant lost his job when the company he worked for closed in 2002. While he eventually began working as a machine operator at about $10.42 per hour ⁽³⁾ and his fiancée returned to work in about July 2002, they made no payments on their delinquent accounts, as daycare for their son cost them $200 per week. A detailed account of the delinquencies is set forth in the following table.

At the urging of his fiancée, Applicant applied for an outside electrician's position with the defense contractor (his current employer) on August 5, 2002. On his application for employment, Applicant falsely indicated that he had been awarded a diploma from a high school in city X, and had completed two years at a university in city X because he thought he would have a better chance of getting a job than had he indicated truthfully that he had his GED. ⁽⁴⁾ Applicant responded "Yes" to any criminal convictions ["HAVE YOU EVER BEEN CONVICTED OF A CRIME (Include any military courts-martial and convictions currently on appeal)? DO NOT INCLUDE ANY CONVICTIONS OCCURRING BEFORE YOUR 16^th BIRTHDAY OR MINOR TRAFFIC VIOLATIONS (e.g., speeding tickets) FOR WHICH THE ONLY PENALTY IMPOSED WAS A FINE OF $100 OR LESS."], but listed only an August 2002 speeding ticket for which he paid over $100. On September 4, 2002, Applicant affirmed that he had not had any subsequent criminal convictions.

On September 30, 2002, Applicant executed a security clearance application (SF 86) at the request of the defense contractor. Applicant deliberately did not disclose his prior criminal record, responding "NO" to questions 21["Have you ever been charged with or convicted of any felony offense?"], 22 ["Have you ever been charged with or convicted of a firearms or explosives offense?] and 24 ["Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?"]. Applicant also did not disclose his financial delinquencies, responding "NO" to questions 35 ["In the last 7 years, have you had any property repossessed for any reason?"], 38 ["In the last 7 years, have you been over 180 days delinquent on any debt(s)?"], and 39 ["Are you currently over 90 days delinquent on any debt(s)?"]. Applicant was hired on at an hourly wage of about $10 sometime that fall. After the first year, he got a raise to $11.57 hourly.

Defense Security Service (DSS) background checks revealed Applicant's criminal arrest record in state Y and the delinquent debts alleged in the SOR. A check of his credit in December 2003 confirmed no progress in addressing the delinquent debts that originally surfaced during a credit check of October 2002.

On February 18, 2004, Applicant was interviewed by a DSS special agent about his arrest record, his alcohol consumption, his financial matters, and his failure to accurately disclose his criminal arrests and debts on his SF 86. Applicant provided details of his arrests, but denied any intentional falsification of his SF 86. He attributed the omission of all his arrests to his belief that he was only supposed to list those arrests where he had been convicted. Applicant acknowledged owing the debts in ¶¶ 2.a. as to the original creditor and not the assignee, 2.d., and 2.e. As for the $815 credit card and $3,226 installment loan debts owed the same creditor (¶ 2.b.), Applicant disputed any remaining obligation after the repossession of his vehicle in about 2001, and averred he thought he had satisfied the credit card. He indicated he would pay those debts if the creditor proved them. Similarly, Applicant disputed the balance of the debt in ¶ 2.c. He attributed the omission of his debts from his SF 86 to not being aware of them or to forgetting about them.

With his receipt of the SOR on September 30, 2005, Applicant learned his criminal drug conviction, financial delinquencies, and failure to disclose his arrest record and indebtedness on his SF 86, raised significant security concerns. Applicant denied any intent to withhold information from the government or his employer, indicating there has been a "miscommunication of the application."

Intentional falsification is not established by inadvertent mistake, lack of recall, or good faith misunderstanding as to what was required. Yet, an inference of intentional concealment may fairly be drawn in this case. The police record inquiries at issue unambiguously require the disclosure of any charges or convictions ("Have you ever been charged with or convicted of any felony offenses?"; "Have you ever been charged with or convicted of a firearms or explosives offense?"; Have you ever been charged with or convicted of any offense(s) related to alcohol or drugs?"). The financial record inquiries are similarly straightforward ("In the last 7 years have you had any property repossessed?"; In the last 7 years, have you ever been over 180 days delinquent on any debt(s)?"). It is difficult to credit Applicant with any good faith where he disclosed no information potentially adverse to him on his SF 86 and lied about his academic qualifications on his employment application. Applicant cannot reasonably claim a good faith (albeit mistaken) belief that only convictions had to be reported and then not list his convictions for felony possession of cocaine and misdemeanor driving while impaired.

Furthermore, his credibility is undermined by the inconsistency in his hearing testimony with respect to the omission of his criminal convictions and financial delinquencies. When asked by the government about his failure to list his cocaine and drunk driving convictions on his SF 86, Applicant initially responded, "At the time, I wouldn't think of it really. I was in a rush. I filled the application out just with the thoughts of--not thinking that--I had no chance anyway." When asked to clarify, Applicant responded, "Not forgot them, just can't remember them basically. (Tr. 32) He claimed to have no recall of his felony cocaine offense at the time he completed his SF 86, even though he had been placed on probation for the offense and been required to perform community service. (Tr. 45-46) As for his failure to list either the cocaine possession or the drunk driving offenses in response to question 24 on the SF 86, Applicant answered, "I don't have a reason." (Tr. 46) When confronted with the negative response to question 35 concerning the repossession, Applicant responded that he "misunderstood" the question. Asked then to point out specifically what did not make sense about the inquiry, Applicant claimed he thought the repossession predated his SF 86 by more than seven years. Yet, in his answer he claimed the repossession occurred after he completed his SF 86. He offered no explanation for failing to report the credit card delinquency in ¶ 2.c. other than he simply forgot about it. (Tr. 48) The more likely explanation for his false entries on his applications for employment and security clearance is that Applicant feared the negative impact of his police record and delinquencies on the job and clearance opportunities. Applicant tellingly admitted to having problems getting a job with his background (". . . before this job, with my background, everything, it's just hard to get a job. So I was employed off and on." Tr. 62).

While working 32 hours per week at a nursing home where she earns $11.55 per hour, Applicant's fiancée began studies toward a nursing career but had to drop out after only a couple of months in October 2005 because she could not afford the cost, which with tuition and books amounted to almost $5,000 for the 15-month program. Her employer would reimburse her for her schooling, but not until after she had completed the program. In about November 2005, she switched to first shift at the nursing home. With Applicant working second shift on his job, they were able to stop the daycare for their son. Applicant is a very good father to him.

As of February 2006, Applicant was being paid $19 per hour as an electrician for the defense contractor. Neither he nor his fiancée had made any payments toward his delinquent debts. "Pretty current" on their living expenses (Tr. 78), Applicant had home heating costs of $500 to $600 he had not yet paid. They were living from paycheck to paycheck. Their rent is $850 per month, but they pay $920 monthly so that they do not have to pay the rent for the last month of the lease. She drives a 1996 economy car, he a 1993 model-year four wheel drive vehicle. They have a joint savings account with about $350 on deposit. Applicant intends to satisfy his delinquent debt once he is financially able to do so because he wants to reestablish his personal credit.

"[N]o one has a 'right' to a security clearance." Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). As Commander in Chief, the President has "the authority to . . . control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position . . . that will give that person access to such information." Id. at 527. The President has authorized the Secretary of Defense or his designee to grant applicants eligibility for access to classified information "only upon a finding that it is clearly consistent with the national interest to do so." Exec. Or. 10865, Safeguarding Classified Information within Industry § 2 (Feb. 20, 1960). Eligibility for a security clearance is predicated upon the applicant meeting the security guidelines contained in the Directive. An applicant "has the ultimate burden of demonstrating that it is clearly consistent with the national interest to grant or continue his security clearance." ISCR Case No. 01-20700 at 3.

Enclosure 2 of the Directive sets forth personnel security guidelines, as well as the disqualifying conditions (DC) and mitigating conditions (MC) under each guideline. In evaluating the security worthiness of an applicant, the administrative judge must also assess the adjudicative process factors listed in ¶ 6.3 of the Directive. The decision to deny an individual a security clearance is not necessarily a determination as to the loyalty of the applicant. See Exec. Or. 10865 § 7. It is merely an indication that the applicant has not met the strict guidelines the President and the Secretary of Defense have established for issuing a clearance.

Concerning the evidence as a whole, the following adjudicative guidelines are most pertinent to this case:

Criminal Conduct. A history or pattern of criminal activity creates doubt about a person's judgment, reliability, and trustworthiness. (¶ E2.A10.1.1.)

Financial Considerations. An individual who is financially overextended is at risk of having to engage in illegal acts to generate funds. Unexplained affluence is often linked to proceeds from financially profitable criminal acts. (¶ E2.A6.1.1.)

Personal Conduct. Conduct involving questionable judgment, untrustworthiness, unreliability, lack of candor, dishonesty, or unwillingness to comply with rules and regulations could indicate that the person may not properly safeguard classified information. (¶ E2.A5.1.1.)

Having considered the evidence of record in light of the appropriate legal precepts and factors, and having assessed the credibility of those who testified, I conclude the following with respect to Guidelines J, F, and E:

Under Guideline J, criminal conduct raises security concerns because of the doubts it creates for a person's judgment, reliability and trustworthiness. Someone who has violated state or federal law may disregard security regulations that they disagree with or find personally inconvenient. The month before he turned 17, Applicant was arrested for felony possession of cocaine after he was found with the drug on school property. Fourteen months later, he was sentenced to two years, suspended, and placed on 12 months supervised probation for the offense. While he was on probation, he was caught and fined for underage drinking in September 1993. In January 1995, he pleaded guilty to a driving while impaired offense committed in July 1994. In August 1994, while the drunk driving charge was pending, he was arrested for carrying a concealed weapon, and in March 1996 for first degree murder. The weapons and murder charges were dismissed as to Applicant, as his cousin committed the crimes, but they show he continued to associate with others engaged in serious criminal activity until he was 21. Clearly, Applicant's involvement in criminal activity went beyond the single drug offense alleged by the government under Guideline J. Disqualifying conditions (DC) DC ¶ E2.A10.1.2.1. Allegations or admission of criminal conduct, regardless of whether the person was formally charged, and DC ¶ E2.A10.1.2.2. A single serious crime or multiple lesser offenses, apply.

Applicant may mitigate criminal conduct where it is not recent (see MC ¶ E2.A10.1.3.1. The criminal behavior was not recent). Fourteen years have passed since he was caught with cocaine in high school. Even with respect to those legal violations that were not alleged, that has been no repeat of the drunk driving since 1994. Applicant left state Y on the dismissal of the murder charge, and moved to city X where he met his fiancée. They have since established a stable life together. MC ¶ E2.A10.1.3.4. The person did not voluntarily commit the act and/or the factors leading to the violation are not likely to recur, also applies. A favorable finding is returned as to ¶ 1.a., as Applicant's lifestyle is no longer conducive to the criminal conduct alleged.

While Applicant's domestic relationship, fatherhood, and his job with the defense contractor have been stabilizing influences, he and his fiancée have struggled financially. As of February 2006, he owes about $5,772 in delinquent debt incurred since 2000. Under Guideline F, financial considerations, the security concerns arise when the applicant is shown to have a history of excessive indebtedness, recurring financial difficulties, or a history of not meeting his financial obligations. The government must consider whether individuals granted access to classified information are, because of financial irresponsibility, in a position where they may be at risk of having to engage in illegal acts to generate funds. DCs ¶ E2.A6.1.2.1. A history of not meeting financial obligations, and ¶ E2.A6.1.2.3. Inability or unwillingness to satisfy debts, apply.

Mitigating condition (MC) ¶ E2.A6.1.3.3. The conditions that resulted in the behavior were largely beyond the person's control (e.g., loss of employment, a business downturn, unexpected medical emergency, or a death, divorce, or separation) applies, as Applicant's financial situation was negatively affected by his fiancée being laid off when she was pregnant and his lack of income. After the birth of their son in February 2002, Applicant's fiancée was out of work for four months. When she went back into the workplace, she earned about $3 less an hour than in her previous employment. After some temporary employment, Applicant started his job with the defense contractor at about $10 an hour. Given daycare expenses of about $800 per month, he did not have the financial resources to pay the debts that had become delinquent in 2001/02.

While the Directive does not require that an applicant be debt free before he can be granted access, there must be adequate assurances that the financial problems are being resolved or are sufficiently minimal to present little or no financial pressure. As of February 2006, Applicant was earning almost double his starting pay with the defense contractor. His fiancée, who was employed about 32 hours per week, was making $11.55 an hour. With her working first shift and Applicant second, they had taken their son out of daycare in about November 2005. Their rent is approximately the same as it had been at their previous residence. Even accounting for the extra $70 they pay each month so they will not have to pay the rent for the last month of their lease, it is not clear where their money is going. Applicant's fiancée testified to having to pay for car repairs, but having no extraordinary expenses. (Tr. 79) Yet, Applicant was significantly behind in his heating bill. It is too soon to conclude that their financial problems are safely behind them. An expressed intent to resolve debts at some future time, when unaccompanied by any effort to contact his creditors, is not enough to overcome the financial considerations concerns. SOR ¶¶ 2.a., 2.b., 2.c., 2.d., and 2.e. are resolved against him.

The delinquent debts notwithstanding, the primary concern in this case is Applicant's lack of candor about his arrest record and indebtedness. Applicant falsely denied that he had any criminal convictions when he applied for work with the defense contractor. Although not alleged under Guideline E, he also misrepresented his academic qualifications on his job application. When pressed at the hearing, he admitted doing so because he thought it would help his chance of obtaining employment (see Tr. 31). In September 2002, he was asked by the defense contractor to complete a security clearance application for a secret-level clearance. Applicant knowingly falsified his responses to questions 21 (any felony charges or convictions), 22 (any firearms or explosives charges or convictions), 24 (any alcohol or illegal drug charges or convictions), 35 (any repossessions in the past 7 years), 38 (any financial delinquencies over 180 days in the past 7 years), and 39 (any debts currently over 90 days delinquent). Under Guideline E, personal conduct, DCs ¶ E2.A5.1.2.2. The deliberate omission, concealment, or falsification of relevant and material fact from any personnel security questionnaire, personal history statement, or similar form used to conduct investigations, determine employment qualifications, award benefits or status, determine security clearance eligibility or trustworthiness, or award fiduciary responsibilities, and ¶ E2.A5.1.2.5. A pattern of dishonesty or rule violations, including violation of any written or recorded agreement made between the original and the agency, apply.

None of the Guideline E mitigating conditions (MC) apply. While Applicant provided detailed accounts of his arrests and financial difficulties to a DSS special agent in February 2004, the disclosures appear to have been prompted by the agent's inquiries and confrontation with the adverse information reflected in his credit report. This rectification, moreover, was not sufficiently prompt to fall within ¶ E2.A5.1.3.3. The individual made prompt, good faith efforts to correct the falsification before being confronted with the facts, and is undermined by his unwillingness to admit that he had lied until closing argument at his February 2006 security clearance hearing. After providing several excuses at his hearing for the omission of relevant and material arrest and financial record information (i.e., thought only convictions were required, did not recall, was in a rush, was not within the past seven years, misunderstood the question), Applicant stated in closing argument, "I'd like to apologize and just say I misunderstood the application. I should have been honest. I should have knew better, you know? I should have took it more serious than what I expect to." (See Tr. 89) Applicant is credited with acknowledging his error and expressing remorse, but it is not enough to dispel the serious judgment, reliability, and trustworthiness concerns that persist because of his lack of candor until the eleventh hour. SOR ¶¶ 3.a., 3.b., 3.c., 3.d., 3.e., 3.f., and 3.g. are concluded against him.

Formal Findings as required by Section 3. Paragraph 7 of Enclosure 1 to the Directive are hereby rendered as follows:

Paragraph 1. Guideline J: FOR THE APPLICANT

Subparagraph 1.a: For the Applicant

Paragraph 2. Guideline F: AGAINST THE APPLICANT

Subparagraph 2.a.: Against the Applicant

Subparagraph 2.b: Against the Applicant

Subparagraph 2.c: Against the Applicant

Subparagraph 2.d.: Against the Applicant

Subparagraph 2.e.: Against the Applicant

Paragraph 3. Guideline E: AGAINST THE APPLICANT

Subparagraph 3.a.: Against the Applicant

Subparagraph 3.b.: Against the Applicant

Subparagraph 3.c.: Against the Applicant

Subparagraph 3.d.: Against the Applicant

Subparagraph 3.e.: Against the Applicant

Subparagraph 3.f.: Against the Applicant

Subparagraph 3.g.: Against the Applicant

In light of all the circumstances presented by the record in this case, it is not clearly consistent with the national interest to grant or continue a security clearance for Applicant. Clearance is denied.

1. The SOR was issued under the authority of Executive Order 10865 (as amended by Executive Orders 10909, 11328, and 12829) and Department of Defense Directive 5220.6 (Directive), dated January 2, 1992 (as amended by Change 4).

2. Applicant indicated on his application for employment with the defense contractor that he resided in city X from 1975 to May 2001. (See Ex. 5) He reported on his SF 86 that he has lived in city X from 1975 to August 1999. (See Exs. 1, 2) His fiancée testified she moved back to her native state in her junior year of college, which would be consistent with the 1999 date. (Tr. 71) Applicant's credit reports show he opened a utility account with a provider in his current state of residence back in August 1999. (See Ex. 6)

3. Applicant indicated in his employment application (Ex. 5) that he worked for the window installer from June 2001 to February 2002, and as a temporary worker for a local warehouse from February 2002 to August 2002, with some overlap with his job as a machine operator beginning in June 2002. On his SF 86, Applicant reported working as a window installer from January 2000 to June 2002, and being unemployed from June 2002 to August 2002, until he started as a machine operator in August 2002. Applicant did not list his temporary job at the warehouse on his SF 86, although he testified he in fact worked there. (Tr. 31)

4. Applicant indicated his university studies were in computers, but at the same time responded "No" to whether he could utilize personal computers. (See Ex. 5)